Who Decides Who's Black or Hispanic?

An especially challenging question concerning affirmative action was not addressed at all by the Supreme Court in the University of Michigan case in oral arguments last week. Indeed, most of the supporters of affirmative action have also evaded that question entirely.

The first reference I found to the question was in Justice William O. Douglas's dissent in Defunis v. Odegaard (1974). (A white applicant to the University of Washington Law School in Seattle claimed he was rejected because of the school's racial preference policy.)

Douglas wrote that in this kind of case, "one must immediately determine which groups are to receive such favored treatment and which are to be excluded . . . and even the criteria by which to determine whether an individual is a member of a favored group." (Emphasis added).

In his book The Minority Rights Revolution (Harvard University Press, 2002), John Skrentny, professor of sociology at the University of California, San Diego, became much more disturbingly specific: "Policymakers or the courts will have to decide just how much of a minority one has to be to qualify, and how the government can verify minority status. This decision will require what policymakers have avoided from the beginning: a massive study of which groups are actually discriminated against and to what degreewhen, where, and how." (Emphasis added.)

In The Chronicle of Higher Educationthe most authoritative news source on higher-education issuesSkrentny was even more specific when referring to the automatic 20 points added to admission scores of blacks and Hispanics seeking entrance to the University of Michigan's undergraduate programs.

He asked "whether someone who is halfor quarterLatino should get all 20 points, or whether Mexican and Puerto Rican applicants deserve more points than Salvadoran or Cuban applicants, or whether a recent Latino immigrant should receive all of the points," and so on, including applicants born in Spain.

He noted that "the public records of students admitted by colleges under affirmative action make no distinction between . . . black students born here and those who are immigrants, or the children of immigrants, from the West Indies or Africa."

Further complicating the question of who deserves preference in view of racial and ethnic discrimination in this country are certain results of Census 2000: A total of 6.8 million Americans told the Census Bureau that they are members of two or more races. And 80 percent of those who identified themselves as biracial listed white as one of those races.

Moreover, as reported in the April 8, 2001, New York Timesand as mentioned in my article "All Mixed Up" in Legal Times"Children under the age of 18 . . . are twice as likely [as adults] to identify themselves as being of more than one race." This is going to be increasingly the case in this decidedly multicultural country.

Nonetheless, as Gary Pavela wrote in the September 4, 2000, Synfaxa weekly commentary on legal issues in higher education throughout the countrythe present system of color-coding college and university admissions "is close to becoming an unquestioned truth [and] an unquestioned truth has a way of settling into orthodoxy. It discourages criticism; becomes rigid and complacent."

It also results in such intricate discrimination in selecting beneficiaries of affirmative action as preferences to Hispanics at the University of Michigan Law School being given to Mexican Americans and mainland Puerto Ricansbut not to applicants raised in Puerto Rico itself, a commonwealth associated with the United States.

My guess is that the Supreme Court will not declare affirmative action unconstitutional as it is now practiced preferentially in college admissions.

The swing vote is likely to be that of Sandra Day O'Connor, who may strike down the automatic 20-point bonus that blacks, Hispanics, and Native Americans get. But a majority of the Court may well preserve less glaringly conspicuous preference systems under what it calls strict judicial scrutinylest racial preferences get out of hand.

But as we become more interracial and multi-ethnic, how are college admissions committees going to decide what percentage of an applicant's blood makes him or her sufficiently black or Hispanic to become a member of a preferred group?

For the first time, the 2000 census allowed us to identify ourselves as being of more than one race. One result was that 37.7 million Americans define themselves as black "in combination with one or more other races"a slightly higher percentage, according to The New York Times, "than the overall figure for Latinos."

Meanwhile, no matter how the Supreme Court decides on affirmative action, the problem of discrimination in schools remains. The court provided an integrationist mandate with its 1954 decision in Brown v. Board of Education (which said that segregated public schools are inherently unconstitutional), but it has steadily betrayed that decision, so that there are now more segregated schools, with inferior resources, than there were in 1954. Because millions of blacks and Hispanics in those schools have been taught, destructively and inaccurately, that they are dumb, they don't apply to colleges. Many drop out of school entirely.

As Daniel Henninger reported in the January 24 Wall Street Journal, "Three years ago in New York, the percentage of black students who did not graduate from high school was 54 percent. . . . Across the nation, the average non-graduate rate for black students is 45 percent. These numbers are surely the same year in and year out, which means that every June in America, largely unnoticed and unremarked upon, almost half the nation's black kids wash over the falls of our urban school systems." (Hispanic dropout rates are also dismaying.)

"This is the real affirmative-action status quo," Henninger continued. "The Harvards, Princetons, Amhersts, Michigans, and Georgetowns fight like dogs over the same small pool of high-achieving black and Hispanic 18-year-olds." And all the rest, whatever their mixture of colors, are left behind.

If the Republican and Democratic leaders in Congress, the presidents through the years, the courts, and the adversaries in the college affirmative-action debates had devoted their passions and their priorities to liberating all these victims of failing schools, there would have been a true diversity of Americans with decent jobs and futures, instead of all this intense concern for what the Supreme Court will do about "diversity"affirmative action for the few.